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EVERYDAY LAW: The making of a will

Cecil McCarthy

EVERYDAY LAW: The making of a will

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As with powers of attorney, care needs to be taken when a will is being made by an aged testator or a person who, through illness, may have some impairment which can affect his ability to make sound decisions.

Section 60 of the Succession Act of Barbados provides that “no will shall be valid unless it is made by a person who (a) his attained the age of 18 years or is or has been married; and (b) is of sound mind”.

The old English case of Banks v Goodfellow (1870) is still regarded as the leading case on testamentary capacity.

There the court considered the matters that a testator should comprehend when he is making his will. The test for testamentary capacity is formulated from the following words of the judgement of the court:

“It is essential to the exercise of such a power that the testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural facilities – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of which, if the mind had been sound, would not have been made.”

From the above words there are three things that the testator must comprehend: the nature of the act and its effects; the extent of the property which he is disposing; and the claims to which he ought to give effect.

As one would expect, challenges to the validity of a will usually arise in the case of aged testators.

In the English case of Re Simpson (1977), Justice Templeman enunciated a “golden rule” that should be observed when an aged person is making a will.

He said: “In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and finding.

“There are other precautions which should be taken. If the testator has made an earlier will, this should be considered by the legal and medical advisers of the testator, and if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator. These are not counsels of perfection. If proper precautions are not taken, injustice may result or be imagined and great expense and misery may be unnecessarily caused.”

In the recent English case of Burgess v Hawes (2013), the English Court of Appeal seemed to cast doubt on the ‘golden rule’. In that case Mummery LJ said:

“If as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of testamentary capacity. The court should be cautious about acting on the basis of evidence of lack of testamentary capacity given by a medical expert after the event, particularly when that expert has neither met or medically examined the testatrix.”  

The views expressed in this recent case suggest that the opinion of Templeman J. insofar as it purports to state a rule may be overstated. It is perhaps better to regard his statement as a counsel of good practice.

Especially in the context of aged persons, the issue of undue influence can arise because of the actions of over-zealous beneficiaries. An attorney at law should not assume that everybody who delivers an aged person to his office is consumed by feelings of kindness and benevolence and should always insist on having a conversation with the testator alone, and should ask questions such as whether any previous wills were made, and if there are changes, the reasons for the changes.

• Cecil McCarthy is a Queen’s Counsel.